International Perspectives on Disability Exceptions in Copyright Law and the Visual Arts

Feeling Art

Jani McCutcheon, Ana Ramalho, Jani McCutcheon, Ana Ramalho

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000193558
• Edition: 1
• Topic: Art
• Subtopic: Art & Politics

This book provides an overview of disability exceptions to copyright infringement and the international and human rights legal framework for disability rights and exceptions. The focus is on those exceptions as they apply to visual art, while the book presents a comprehensive study of copyright's disability exceptions per se and the international and human rights law framework in which they are situated.

3D printing now allows people with a visual impairment to experience 3D reproductions of paintings, drawings and photographs through touch. At the same time, the uncertain application of existing disability exceptions to these reproductions may generate concerns about legal risk, hampering sensory art projects and reducing inclusivity and equity in cultural engagement by people with a visual impairment. The work adopts an interdisciplinary approach, with contributions from diverse stakeholders, including persons with disabilities, cultural institutions and the 3D printing industry. The book sketches the scene relating to sensory art projects. Experts in intellectual property, human rights, disability and art law then critically analyse the current legal landscape relating to disability access to works of visual art at both international and regional levels, as well as across a broad representative sample of national jurisdictions, and identify where legal reform is required.

This comparative analysis of the laws aims to better inform stakeholders of the applicable legal landscape, the legal risks and opportunities associated with sensory art and the opportunities for reform and best practice guidelines, with the overarching goal of facilitating international harmonisation of the law and enhanced inclusivity.

1 Introduction

Jani McCutcheon and Ana Ramalho

This book critically reviews disability exceptions to copyright infringement in key jurisdictions and the international legal framework for disability rights and exceptions, with a focus on how they apply to visual art. Disability access to copyright works is a universal issue. The book therefore undertakes a comparative analysis of the laws in select yet diverse jurisdictions, with a view to better inform stakeholders of the applicable legal landscape, the legal risks and opportunities associated with disability access and the opportunities for reform and best practice guidelines. It has an overarching goal of facilitating international harmonisation of the law.

The new terrain of disability access to visual art

The book’s attention to visual art seeks to complement and correct the concentrated scholarship and reform relating to disability access to literary works in accessible format copies, which led to the Marrakesh Treaty. This treaty, in turn, prompted a number of states to modify or introduce exceptions insulating infringements made to facilitate disability access to copyright works (mostly literary works). Because accessible format copies almost invariably involve making reproductions of copyright works, they may infringe copyright and moral rights unless exempted. In the context of visual art, three-dimensional (3D) printing technology now permits paintings, drawings and photographs to be rendered in 3D form so that persons with a visual impairment (PVI) can haptically perceive the art. This book was prompted in part by a curiosity to know whether new and existing disability exceptions to infringement apply to these sensory art translations and reproductions. Consistent with the tenor of the Marrakesh Treaty, we hypothesised that the exceptions would focus on, or assume a limitation to, access to literary works, and expected their application to visual art to be uncertain or even non-existent, particularly due to the novelty of 3D art reproduction and the multiplicity of actors involved in it. We knew that disability exceptions had received scant scholarly examination and differed across jurisdictions. We wondered how technology-neutral they were, and whether they were able to encompass contemporary digital practices. From an inclusivity perspective, we were concerned that the lack, inadequacy or uncertainty of exceptions to infringement of copyright may hamper sensory art projects for PVI beneficiaries and reduce inclusivity and equity in cultural engagement by PVI. We realised that a comprehensive overview of disability exceptions was necessary, overdue and timely, particularly as those exceptions apply to visual art and 3D printing technology.

An interdisciplinary approach

In order to capture a holistic picture of the legal and policy landscape surrounding disability access, particularly to art, this book adopts an interdisciplinary approach, with contributions from industry stakeholders, social scientists and experts in intellectual property law, human rights law, disability law and art law. Part 1 considers the social, cultural and technical challenges of 3D printing 2D art works. It explores sensory art projects in cultural institutions; issues of open access to art and the practices and policies of galleries, libraries and archives and museums; 3D printing in arts and heritage; and the issues from the perspective of PVI and a 3D printing service. Part 2 canvasses the disability exceptions under international law and the international human rights framework. Part 3 gives an overview of the EU framework for disability rights and exceptions. Part 4 then maps and critiques the copyright and moral right exceptions framework in the individual representative jurisdictions of Australia, the United States, Canada, Brazil, the UK, China, Costa Rica, Japan and New Zealand, exploring whether and how they apply to visual art, and identifies major issues and strengths and weaknesses in the system.

The sensory art landscape

Historically, questions and concerns surrounding disability exceptions and visual art may have been largely theoretical, because the technology facilitating the manipulation of art into 3D form was relatively immature. However, the existence and growing sophistication of 3D printing, particularly its embryonic but potentially capacious use by cultural institutions to foster access to artworks by PVI, now compels the consideration of these issues. For some time, cultural institutions have engaged in programmes facilitating access to art through tools such as audio tours and Braille descriptions, and touch tours of replicas of existing 3D artworks. However, it is only with the advent of 3D printing that PVI have been empowered to ‘see’ two-dimensional art through touch for the first time. Recent projects include those undertaken by the Lawrence Wilson Art Gallery at the University of Western Australia,¹ Madrid’s Museo del Prado,² the Canadian Museum for Human Rights,³ the Oxford University Museums,⁴ The Van Gogh Museum,⁵ the Belvedere Museum in Vienna,⁶ the Smithsonian American Art Museum,⁷ The Virginia Historical Society,⁸ The Panhandle- Plains Historical Museum⁹ and the Art Institute of Chicago.¹⁰ Increasingly, PVI can also organise their own 3D versions of paintings, drawings and photographs through platforms such as the Thingiverse website.¹¹ Characters from the French book Le Petit Prince (1943)¹² and Dr. Seuss’ classic The Cat in the Hat¹³ have been transformed into 3D printable models for children with visual impairment. PVI can now also capture photographic moments in 3D form, as revealed in the short documentary ‘Touchable Memories’, in which one of the film’s subjects says, ‘If I could touch the picture, I could make the memory tangible again’.¹⁴ Organisations like 3DPhotoWorks,¹⁵ Versus Art,¹⁶ The Unseen Art Project,¹⁷ artecontacto¹⁸ and The VRVis Center for Virtual Reality and Visualization’s Tactile Paintings research project¹⁹ are all committed to enhancing access to the cultural heritage of two-dimensional art by PVI.²⁰ This technology allows these works to be haptically ‘seen’ for the first time, or experienced in more effective ways. Anecdotal evidence suggests that these sensory art projects are beneficial to PVI.²¹

1 See ‘For Visitors with Visual Impairment: Audio Description and Tactile Tour’, at http://www.lwgallery.uwa.edu.au/events (accessed 23 March 2020).

2 https://www.museodelprado.es/en/whats-on/exhibition/touching-the-prado/29c8c453-ac66-4102-88bd-e6e1d5036ffa (accessed 23 March 2020).

3 https://humanrights.ca/explore/exhibitions/sight-unseen/3d-images-and-tech (accessed 23 March 2020).

4 http://globalaccessibilitynews.com/2016/10/30/new-project-to-improve-museum-experience-for-people-with-vision-disabilities/ (accessed 23 March 2020).

5 https://www.vangoghmuseum.nl/en/whats-on/feeling-van-gogh (accessed 23 March 2020).

6 https://www.belvedere.at/bel_en/exhibition/gustav_klimts_kiss_at_your_fingertips_ (accessed 23 March 2020).

7 http://americanart.si.edu/education/verbal/ (accessed 23 March 2020).

8 https://www.3ders.org/articles/20171023-virginia-museum-uses-3d-printed-tactile-artefacts-in-touch-tours-for-visually-impaired.html (accessed 23 March 2020).

9 https://www.youtube.com/watch?v=6ySUoGXJOaQ and see http://www.newschannel10.com/story/38090144/going-beyond-the-visuals-new-exhibit-at-panhandle-plains-museum-provides-art-to-the-visually-impaired (both accessed 23 March 2020).

10 http://www.nytimes.com/2013/10/27/arts/artsspecial/welcoming-art-lovers-with-disabilities.html

11 http://www.artic.edu/aic/resources/resource-tag/11071 (accessed 23 March 2020).

12 https://3dprintingindustry.com/news/3d-printing-is-helping-blind-people-see-the-world-around-them-66480/ (accessed 23 March 2020).

13 https://all3dp.com/3d-printing-supporting-blind-people/ (accessed 23 March 2020).

14 http://blog.drupa.com/3dprinting-blind/ (accessed 23 March 2020).

15 http://www.3dphotoworks.com/ (accessed 23 March 2020).

16 http://verusart.com/ (accessed 23 March 2020).

17 http://www.unseenart.org/ (accessed 23 March 2020).

18 http://www.artecontacto.org/ (accessed 23 March 2020).

19 http://www.vrvis.at/research/projects/tactile-paintings/ (accessed 23 March 2020).

20 Those with other disabilities may also benefit from tactile interaction with art, such as those with Alzheimer’s disease or who are on the autism spectrum.

21 One beneficiary of a sensory art project describes his frustration with visual art programmes that rely on the sighted to describe the work, giving a ‘Reader’s Digest version of a painting’. The beneficiary spoke of the interpretive autonomy facilitated by 3D printing:

when you have the chance to put your hands on an actual painting and you can feel the faces and the crevices on their faces, I can get my own interpretation of what it’s like without it being censored by someone else. I’m free to figure out what I think is important in the picture.

Quoted in Melissa Locker, ‘3-D Technologies Help the Blind Experience Art More Fully’ Fast Company, 3 November 2016, at https://www.fastcompany.com/3057520/3-d-technologies-help-the-blind-experienc...